The Enid News and Eagle, Enid, OK

Opinion

June 27, 2014

An unalienable right

Since we are far, far removed from our declared independence and founding in 1776, Americans tend to get pre-conceived notions and flat-out wrong assumptions about the Bill of Rights.

As we come upon another Fourth of July celebration this coming week, a little history lesson on who, what and why do we have the sometimes enigmatic Bill of Rights.

I say enigmatic, because parts of it always seem to get lost in the shuffle of some partisan political fight or an emotional response by the public to some perceived outrageous act.

In the news at mid-week was the United States Supreme Court’s unanimous, 9-0 vote to reaffirm every American’s Fourth Amendment rights.

In its emphatic decision, there was no Republican or Democrat, no tea party, no conservative or liberal. It was nine justices of all political backgrounds saying: “This is it, this is the law of the land. Period!”

The high court re-affirmed that law enforcement cannot arbitrarily confiscate an individual’s cellphone or smartphone, turn it on and gain incriminating evidence against the owner of said phone, without first getting a legal search warrant to do so from a judge.

No fishing expeditions, no “let’s see what we can find on your phone” —  a court-issued search warrant must specifically state what those officers are looking for.

The Fourth Amendment to the Constitution of the United States prohibits unreasonable searches and seizures, and requires law enforcement have probable cause to do such searches.

The deeply rooted law comes from our colonial founding, when our sovereign — the British government and King George III — used the Writ of Assistance to search and seize property in America.

To our forefathers, to American colonists, the Writ of Assistance by the crown was a general search warrant issued by local courts to assist the British government in enforcing trade and navigation laws.

The writ allowed customhouse officers, with the assistance of a sheriff, justice of the peace or constable, to search any house for smuggled goods without specifying either the house or the goods.

The Writ of Assistance was one of the great burs in the saddle of colonial Americans, and in particular Boston merchants.

Although smuggling of goods was well established, the people who didn’t smuggle in goods to avoid British taxes were cast into the same net of searching and seizing.

So, when the writs were challenged in court, it was argued they violated the natural rights of colonists, becoming one of many rallying cries for the American Revolution.

Arguing before a court in 1761, colonial lawyer James Otis represented Boston merchants in their challenge to have the writs renewed into law.

Before the Superior Court of Massachusetts, Otis eloquently argued: “I was desired by one of the court to look into the (law) books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee), I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.”

Powerful words those. A powerful image for Americans to grasp hold of as they contemplated a revolution.

As our Supreme Court affirmed and re-affirmed the Fourth Amendment in later years, it ruled in Weeks v. United States that the exclusionary rule is backed by the Fourth Amendment.

It stated any evidence obtained through a violation of the Fourth generally is inadmissible at criminal trials.

That evidence discovered as a later result of an illegal search also may be inadmissible as “fruit of the poisonous tree,” unless it inevitably would have been discovered by legal means.

So, in my job as a journalist, I seem to see a not-too-often, but still steady stream of news stories make their way to print, in which some person is accused of some crime — heinous or an everyday variety — in which a law enforcement officer has obtained evidence that violated the Fourth Amendment.

And, as the public is sometimes wont to do, we look at this as the “bad guy” getting away with murder or some other crime.

And we would be dead wrong.

That person, be it me, you or some guy on the street, is protected by the Fourth Amendment — as unalienable a right as bearing firearms, the right to trial by jury or freedom of speech.

It is our right, unbeholden to any government or law.

Christy is news editor at the Enid News & Eagle. Go to his column blog at enidnews.com/historicallyspeaking.

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